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Romania: Venice Commission publishes opinion on emergency ordinances GECO no. 7 and GEO no. 12 amending the laws of justice
The Venice Commission has just published an Opinion on Romania concerning the emergency ordinances GEO no. 7 and GEO no. 12 amending the laws of justice. The opinion was adopted during the Venice Commission´s 119th plenary meeting held on 21 and 22 June 2019.
By letter of 12 March 2019 the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (the Monitoring Committee) of the Parliamentary Assembly decided to request an opinion of the Venice Commission on Government Emergency Ordinance 7/2019 of 20 February 2019 on amendments to the three laws of justice in Romania (CDL-REF(2019)013; hereinafter GEO no. 7).
The three laws of justice in question are Law no. 303/2004 on the Statute of Judges and Prosecutors, Law no. 304/2004 on Judicial Organisation, and Law no. 317/2004 on the Superior Council for Magistracy (the SCM), all amended in 2018.1 In 2018 the three laws of justice were further amended by Government Emergency Ordinances (GEOs) nos. 77, 90 and 92. In 2019 they were further amended, first by GEO no. 7, and next, on 5 March 2019, by GEO no. 12 (CDLREF(2019)012, hereinafter GEO no. 12).
Conclusions
The Venice Commission notes with regret that the most problematic elements of the 2018 reform, identified in the opinion of October 2018, either remained unchanged or were aggravated. The most important aspects of the on-going reform of the judiciary are the following:
• most alarmingly, the Government continues to make legislative amendments by emergency ordinances. While the Constitution clearly indicates that this should be an exceptional measure, legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and of the real motives behind some of those changes. The resulting legal texts are not clear. This practice weakens external checks on the Government, it is contrary to the principle of separation of powers and disturbs legal certainty. The Venice Commission calls on the Romanian authorities to drastically limit the use of the GEOs. As to the further amendments to the three laws in the field of justice, they should be made through a normal legislative procedure;
• the reasons for the creation of the special Section for the investigation of criminal offences in the judiciary (the Section), with loosely defined jurisdiction, remain unclear. Top prosecutors of this Section were appointed under a transitional scheme which de facto removed the prosecutors’ wing of the Supreme Council of Magistracy (the SCM) from the decision-making process, which does not sit well with the institutional design of the SCM. It is uncertain to what extent the prosecutors of the Section and its Chief Prosecutor are under the full hierarchical control of the Prosecutor General. Since the Section would be unable to effectively deal with all cases within its competence, it risks being an obstacle to the fight against corruption and organised crime;
• the scheme of appointment and dismissal of the top prosecutors remains essentially the same, with the Minister of Justice playing a decisive role in this process, without counterbalancing powers of the President of Romania or the SCM. It is recommended to develop an appointment scheme which would give the Prosecutors’ Section of the SCM a key and pro-active role in the process of the appointment of candidates to any top position in the prosecution system;
• it is possible to remove currently serving prosecutors with reference to the new eligibility criteria, arbitrarily chosen. The Venice Commission urges the Romanian authorities not to apply the new eligibility criteria to those prosecutors who were already in place when the respective amendments were made.